Citation Nr: 1804958 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-26 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diverticulitis. 2. Whether new and material evidence has been received to reopen a claim for service connection for a heart disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for detached retina. REPRESENTATION Appellant represented by: James M. McElfresh II., Agent ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from January 1968 to May 1968, August 1975 to June 1976, and December 1990 to April 1991. He also several years of service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). In the June 2016 substantive appeal, the Veteran and his representative asserted a claim of clear and unmistakable error (CUE) in the March 2016 RO rating decision currently before the Board. The Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. See Bowen v. Shinseki, 25 Vet. App. 250, 255 (2012) ("[R]equests for revision of an RO decision based on CUE must first be submitted to and adjudicated by the RO before the Board can attain jurisdiction over the request."). Here, the Agency of Original Jurisdiction (AOJ) has not adjudicated the CUE claim. Therefore, the Board lacks jurisdiction over the issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, the claims to reopen entitlement to service connection of diverticulitis, heart disability and detached retinas are inextricably intertwined with the claim that CUE was present in the March 2016 rating decision which denied the issues on appeal. It would be premature and prejudicial to consider the new and material evidence claims on appeal prior to adjudication of the CUE claim. Therefore, adjudication of the claims that are currently in appellate status must be deferred pending the adjudication of the CUE claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Take appropriate action on the appellant's claim that CUE was present in the March 2016 rating decision which denied reopening the claims of entitlement to service connection for diverticulitis, a heart disability and for a detached retina. 2. If the CUE claim is denied or dismissed, the AOJ must provide the Veteran with notice of his appellate rights. Upon receipt of any timely notice of disagreement the AOJ should furnish the Veteran and his agent a statement of the case with citation to and discussion of all applicable law and regulations clearly setting forth the reasons for the decision. If and only if the Veteran thereafter files a timely substantive appeal concerning the CUE issue, the AOJ should certify the CUE issue for appellate review. If the Veteran does not complete a timely appeal regarding the CUE issue, the RO should return the case to the Board for further appellate consideration of his claims for whether new and material evidence has been received to reopen a claim for entitlement to service connection for diverticulitis, heart disability and detached retinas. If the CUE claim is granted, the RO should then readjudicate the other issues on appeal. If the determination remains adverse, the Veteran and his representative should be furnished a supplemental statement of the case which includes a summary of any additional evidence submitted. The requisite period of time for a response should be afforded. The appellant and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).